EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is effective between Superior Well Services, Inc., a
Delaware corporation (the "CORPORATION"), and the undersigned director or
officer of the Corporation ("INDEMNITEE").
WHEREAS, the Corporation has adopted Amended and Restated Bylaws (as
the same may be amended from time to time, the "BYLAWS") providing for
indemnification of the Corporation's directors and officers to the maximum
extent authorized by the Delaware General Corporation Law (the "DGCL"); and
WHEREAS, the Bylaws and the DGCL contemplate that contracts and
insurance policies may be entered into with respect to indemnification of
directors and officers; and
WHEREAS, there are questions concerning the adequacy and reliability of
the protection which might be afforded to directors and officers from
acquisition of policies of Directors and Officers Liability Insurance ("D&O
INSURANCE"), covering certain liabilities which might be incurred by directors
and officers in the performance of their services to the Corporation; and
WHEREAS, it is reasonable, prudent and necessary for the Corporation to
obligate itself contractually to indemnify Indemnitee so that he will serve or
continue to serve the Corporation free from undue concern that he will not be
adequately protected; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take
on additional service for or on behalf of the Corporation on condition that he
be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Corporation and Indemnitee do hereby covenant and agree as
follows:
1. DEFINITIONS. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened,
pending or completed action, suit, inquiry or proceeding, whether brought by or
in the right of the Corporation or otherwise and whether of a civil, criminal,
administrative, arbitrative or investigative nature, in which Indemnitee is or
will be involved as a party, as a witness or otherwise, by reason of the fact
that Indemnitee is or was a director or officer of the Corporation, by reason of
any action taken by him or of any inaction on his part while acting as a
director or officer or by reason of the fact that he is or was serving at the
request of the Corporation as a director, officer, trustee, employee or agent of
another corporation, partnership, joint venture, trust, limited liability
company or other enterprise; in each case whether or not he is acting or serving
in any such capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this Agreement; provided
that any such action, suit or proceeding that is brought by Indemnitee against
the Corporation or directors or officers of the Corporation, other than an
action brought by Indemnitee to enforce his rights under this Agreement, shall
not be deemed a Proceeding without prior approval by a majority of the Board of
Directors of the Corporation.
(b) The term "Expenses" shall include, without
limitation, any judgments, fines and penalties against Indemnitee in connection
with a Proceeding; amounts paid by Indemnitee in settlement of a Proceeding; and
all attorneys' fees and disbursements, accountants' fees, private investigation
fees and disbursements, retainers, court costs, transcript costs, fees of
experts, fees and expenses of witnesses, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements, or expenses, reasonably incurred by or for
Indemnitee in connection with prosecuting, defending, preparing to prosecute or
defend, investigating, being or preparing to be a witness in a Proceeding or
establishing Indemnitee's right of entitlement to indemnification for any of the
foregoing.
(c) References to Indemnitee's being or acting as "a
director or officer of the Corporation" or "serving at the request of the
Corporation as a director, officer, trustee, employee or agent of another
corporation, partnership, joint venture, trust, limited liability company or
other enterprise" shall include in each case service to or actions taken while a
director, officer, trustee, employee or agent of any subsidiary or predecessor
of the Corporation.
(d) References to "other enterprise" shall include
employee benefit plans; references to "fines" shall include any excise tax
assessed with respect to any employee benefit plan; references to "serving at
the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, trustee, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in
the interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interest of
the Corporation" as referred to in this Agreement.
(e) The term "substantiating documentation" shall mean
copies of bills or invoices for costs incurred by or for Indemnitee, or copies
of court or agency orders or decrees or settlement agreements, as the case may
be, accompanied by a sworn statement from Indemnitee that such bills, invoices,
court or agency orders or decrees or settlement agreements, represent costs or
liabilities meeting the definition of "Expenses" herein.
(f) The terms "he" and "his" have been used for
convenience and mean "she" and "her" if Indemnitee is a female.
2. INDEMNITY OF DIRECTOR OR OFFICER. The Corporation hereby
agrees to hold harmless and indemnify Indemnitee against Expenses to the fullest
extent authorized or permitted by law (including the applicable provisions of
the DGCL). The phrase "to the fullest extent permitted by law" shall include,
but not be limited to (a) to the fullest extent permitted by any provision of
the DGCL that authorizes or permits additional indemnification by agreement, or
the corresponding provision of any amendment to or replacement of the DGCL and
(b) to the fullest extent authorized or permitted by any amendments to or
replacements of the DGCL adopted after the date of this Agreement that increase
the extent to which a corporation may indemnify its officers and directors. Any
amendment, alteration or repeal of the DGCL that adversely affects any right of
Indemnitee shall be prospective only and shall not limit or eliminate any such
right with respect to any Proceeding involving any occurrence or alleged
occurrence of any action or omission to act that took place prior to such
amendment or repeal.
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3. ADDITIONAL INDEMNITY. The Corporation hereby further agrees to
hold harmless and indemnify Indemnitee against Expenses incurred by reason of
the fact that Indemnitee is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, trustee, employee or agent of another corporation,
partnership, joint venture, trust, limited liability company or other
enterprise, including, without limitation, any predecessor, subsidiary or
affiliated entity of the Corporation, but only if Indemnitee acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Corporation. Additionally, in the case of a criminal
proceeding, Indemnitee must have had no reasonable cause to believe that his
conduct was unlawful. The termination of any Proceeding by judgment, order of
the court, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not, of itself, create a presumption that Indemnitee did not
act in good faith and in a manner which he reasonably believed to be in, or not
opposed to, the best interest of the Corporation, and with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe that his
conduct was unlawful.
4. CHOICE OF COUNSEL. If Indemnitee is not an officer of the
Corporation, he, together with the other directors who are not officers of the
Corporation (the "OUTSIDE DIRECTORS"), shall be entitled to employ, and be
reimbursed for the fees and disbursements of, counsel separate from that chosen
by Indemnitees who are officers of the Corporation. The principal counsel for
Outside Directors ("PRINCIPAL COUNSEL") shall be determined by majority vote of
the Outside Directors, and the Principal Counsel for the Indemnitees who are not
Outside Directors ("SEPARATE COUNSEL") shall be determined by majority vote of
such Indemnitees, in each case subject to the consent of the Corporation (not to
be unreasonably withheld or delayed). The obligation of the Corporation to
reimburse Indemnitee for the fees and disbursements of counsel hereunder shall
not extend to the fees and disbursements of any counsel employed by Indemnitee
other than Principal Counsel or Separate Counsel, as the case may be, unless
Indemnitee has interests that are different from those of the other Indemnitees
or defenses available to him that are in addition to or different from those of
the other Indemnitees such that Principal Counsel or Separate Counsel, as the
case may be, would have an actual or potential conflict of interest in
representing Indemnitee.
5. ADVANCES OF EXPENSES. Expenses (other than judgments,
penalties, fines and settlements) incurred by Indemnitee shall be paid by the
Corporation, in advance of the final disposition of the Proceeding, within 20
calendar days after receipt of Indemnitee's written request accompanied by
substantiating documentation and Indemnitee's written affirmation that he has
met the standard of conduct for indemnification and a written undertaking to
repay such amount to the extent it is ultimately determined that indemnitee is
not entitled to indemnification. No objections based on or involving the
question whether such charges meet the definition of "Expenses," including any
question regarding the reasonableness of such Expenses, shall be grounds for
failure to advance to such Indemnitee, or to reimburse such Indemnitee for, the
amount claimed within such 20-day period, and the undertaking of Indemnitee set
forth in Section 7 hereof to repay any such amount to the extent it is
ultimately determined that Indemnitee is not entitled to indemnification shall
be deemed to include an undertaking to repay any such amounts determined not to
have met such definition.
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6. RIGHT OF INDEMNITEE TO INDEMNIFICATION UPON APPLICATION;
PROCEDURE UPON APPLICATION. Any indemnification under this Agreement, other than
pursuant to Section 5 hereof, shall be made no later than 60 days after receipt
by the Corporation of the written request of Indemnitee, accompanied by
substantiating documentation, unless a determination is made within said 60-day
period by (a) the Board of Directors by a majority vote of a quorum consisting
of directors who are not or were not parties to such Proceeding, (b) a committee
of the Board of Directors designated by majority vote of the Board of Directors,
even though less than a quorum, (c) if there are no such directors, or if such
directors so direct, independent legal counsel in a written opinion or (d) the
stockholders, that Indemnitee has not met the relevant standards for
indemnification set forth in Section 3 hereof.
The right to indemnification or advances as provided by this Agreement
shall be enforceable by Indemnitee in any court of competent jurisdiction. The
burden of proving that indemnification is not appropriate shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, any committee thereof, independent legal counsel or its stockholders)
to have made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because Indemnitee has met the
applicable standards of conduct, nor an actual determination by the Corporation
(including its Board of Directors, any committee thereof, independent legal
counsel or its stockholders) that Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that Indemnitee has not met the applicable standard of conduct.
7. UNDERTAKING BY INDEMNITEE. Indemnitee hereby undertakes to
repay to the Corporation (a) any advances of Expenses pursuant to Section 5
hereof and (b) any judgments, penalties, fines and settlements paid to or on
behalf of Indemnitee hereunder, in each case to the extent that it is ultimately
determined that Indemnitee is not entitled to indemnification. As a condition to
the advancement of such Expenses or the payment of such judgments, penalties,
fines and settlements, Indemnitee shall, at the request of the Company, execute
an acknowledgment that such Expenses or such judgments, penalties, fines and
settlements, as the case may be, are delivered pursuant and are subject to the
provisions of this Agreement.
8. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The indemnification
and advancement of expenses provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may be entitled under the
Company's Amended and Restated Certificate of Incorporation (as the same may be
amended from time to time), the Bylaws, the DGCL, any D&O Insurance, any
agreement, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office; provided, however, that
this Agreement supersedes all prior written indemnification agreements between
the Corporation (or any predecessor thereof) and Indemnitee with respect to the
subject matter hereof. However, Indemnitee shall reimburse the Corporation for
amounts paid to him pursuant to such other rights to the extent such payments
duplicate any payments received pursuant to this Agreement.
9. CONTINUATION OF INDEMNITY. All agreements and obligations of
the Corporation contained herein shall continue during the period Indemnitee is
a director or officer of the Corporation (or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, limited liability company or
other enterprise) and shall continue thereafter so long as Indemnitee shall be
subject
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to any possible Proceeding (notwithstanding the fact that Indemnitee has ceased
to serve the Corporation).
10. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for a portion
of Expenses, but not, however, for the total amount thereof, the Corporation
shall nevertheless indemnify Indemnitee for the portion of such Expenses to
which Indemnitee is entitled.
11. SETTLEMENT OF CLAIMS. The Corporation shall not be liable to
indemnify Indemnitee under this Agreement for any amounts paid in settlement of
any Proceeding effected without the Corporation's written consent. The
Corporation shall not settle any Proceeding in any manner which would impose any
penalty or limitation on Indemnitee without Indemnitee's written consent.
Neither the Corporation nor Indemnitee will unreasonably withhold or
delay their consent to any proposed settlement. The Corporation shall not be
liable to indemnify Indemnitee under this Agreement with regard to any judicial
award if the Corporation was not given a reasonable and timely opportunity, at
its expense, to participate in the defense of such action.
12. ACKNOWLEDGEMENTS.
(a) Corporation Acknowledgement. The Corporation
expressly confirms and agrees that it has entered into this Agreement and
assumed the obligations imposed on the Corporation hereby in order to induce
Indemnitee to serve or to continue to serve as a director or officer of the
Corporation, and acknowledges that Indemnitee is relying upon this Agreement in
agreeing to serve or in continuing to serve as a director or officer of the
Corporation.
(b) Mutual Acknowledgment. Both the Corporation and
Indemnitee acknowledge that in certain instances, Federal law or public policy
may override applicable state law and prohibit the Corporation from indemnifying
its directors and officers under this Agreement or otherwise. For example, the
Corporation and Indemnitee acknowledge that the Securities and Exchange
Commission (the "SEC") has taken the position that indemnification is not
permissible for liabilities arising under certain federal securities laws, and
federal legislation prohibits indemnification for certain ERISA violations.
Indemnitee understands and acknowledges that the Corporation has undertaken or
may be required in the future to undertake with the SEC to submit the question
of indemnification to a court in certain circumstances for a determination of
the Corporation's right under public policy to indemnify Indemnitee.
13. ENFORCEMENT. In the event Indemnitee is required to bring any
action or other proceeding to enforce rights or to collect moneys due under this
Agreement and is successful in such action, the Corporation shall reimburse
Indemnitee for all of Indemnitee's Expenses in bringing and pursuing such
action.
14. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Corporation shall not be obligated pursuant to the terms of
this Agreement:
(a) No Entitlement to Indemnification. To indemnify
Indemnitee for any expenses incurred by Indemnitee with respect to any
proceeding instituted by Indemnitee to
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enforce or interpret this Agreement, if a court of competent jurisdiction
determines that Indemnitee was not entitled to indemnification hereunder;
(b) Insured Claims. To indemnify Indemnitee for Expenses
or liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes or penalties, and amounts paid in settlement) to the
extent such Expenses or liabilities have been paid directly to Indemnitee by an
insurance carrier under a D&O Insurance policy maintained by the Corporation;
(c) Remuneration in Violation of Law. To indemnify
Indemnitee in respect of remuneration paid to Indemnitee if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law;
(d) Indemnification Unlawful. To indemnify Indemnitee if
a final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful;
(e) Misconduct, Etc. To indemnify Indemnitee on account
of Indemnitee's conduct which is finally adjudged to have been knowingly
fraudulent or deliberately dishonest or to constitute intentional misconduct, a
knowing violation of law, a violation of Section 174 of the DGCL or a
transaction from which Indemnitee derived an improper personal benefit;
(f) Breach of Duty. To indemnify Indemnitee on account of
Indemnitee's conduct which is the subject of any Proceeding brought by the
Corporation and approved by a majority of the Board of Directors which alleges
willful misappropriation of corporate assets by Indemnitee, disclosure of
confidential information in violation of Indemnitee's fiduciary or contractual
obligations to the Corporation, or any other willful and deliberate breach in
bad faith of Indemnitee's duty to the Corporation or its stockholders; or
(g) Claims Under Section 16(b). To indemnify Indemnitee
for expenses or the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
15. SEVERABILITY. If any provision of this Agreement shall be held
to be invalid, illegal or unenforceable (a) the validity, legality and
enforceability of the remaining provisions of this Agreement shall not be in any
way affected or impaired thereby, and (b) to the fullest extent possible, the
provisions of this Agreement shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable. Each
section of this Agreement is a separate and independent portion of this
Agreement. If the indemnification to which Indemnitee is entitled with respect
to any aspect of any claim varies between two or more sections of this
Agreement, that section providing the most comprehensive indemnification shall
apply.
16. MISCELLANEOUS.
(a) Governing Law. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and
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interpreted in accordance with the laws of the State of Delaware, without giving
effect to principles of conflict of law.
(b) Entire Agreement; Enforcement of Rights. This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter herein and merges all prior discussions between
them. No modification of or amendment to this Agreement, nor any waiver of any
rights under this Agreement, shall be effective unless in writing signed by the
parties to this Agreement. The failure by either party to enforce any rights
under this Agreement shall not be construed as a waiver of any rights of such
party.
(c) Construction. This Agreement is the result of
negotiations between and has been reviewed by each of the parties hereto and
their respective counsel, if any; accordingly, this Agreement shall be deemed to
be the product of all of the parties hereto, and no ambiguity shall be construed
in favor of or against any one of the parties hereto.
(d) Notices. All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given (i) when delivered
personally to the recipient, (ii) when sent to the recipient by telecopy
(receipt electronically confirmed by sender's telecopy machine) if during normal
business hours of the recipient, otherwise on the next business day, (iii) one
business day after the date when sent to the recipient by reputable overnight
courier service (charges prepaid), or (iv) five business days after the date
when mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications
shall be sent to the parties at the addresses indicated on the signature page
hereto, or to such other address as any party hereto may, from time to time,
designate in writing delivered pursuant to the terms of this Section 16(d).
(e) Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(f) Successors and Assigns. This Agreement shall be
binding upon the Corporation and its successors and assigns and shall inure to
the benefit of Indemnitee and Indemnitee's heirs, legal representatives and
assigns.
(g) Subrogation. In the event of payment under this
Agreement, the Corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee, who shall execute all documents
required and shall do all acts that may be necessary to secure such rights and
to enable the Corporation to effectively bring suit to enforce such rights.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
SUPERIOR WELL SERVICES, INC.
By:
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Name:
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Title:
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Address: 0000 Xx. 000 Xxxx, Xxxxx #000
Xxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
INDEMNITEE:
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Name:
Address:
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Facsimile: ( ) -
